12:0198(50)CA - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 -- 1983 FLRAdec CA



[ v12 p198 ]
12:0198(50)CA
The decision of the Authority follows:


 12 FLRA No. 50
 
 DEPARTMENT OF THE AIR FORCE
 GRIFFISS AIR FORCE BASE
 ROME, NEW YORK
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2612, AFL-CIO
 Charging Party
 
                                            Case Nos. 1-CA-384 
                                                      1-CA-559 
                                                      1-CA-588
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices alleged in the consolidated complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other unfair labor practices, and recommended
 dismissal of those portion of the complaint.  Thereafter, the General
 Counsel and the Respondent filed exceptions to the Judge's Decision, and
 the Respondent filed an opposition to the General Counsel's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record in this case, /1/ the Authority
 hereby adopts the Judge's findings, conclusions and recommendations as
 modified herein.  /2/
 
    In case No. 1-CA-559, the Judge found that the Respondent violated
 section 7116(a)(1), (5) and (8) of the Statute /3/ when it withheld
 monies from current union dues allotments of unit employees and
 disbursed such monies to various employees who had in the past been
 subjected to erroneous dues withholdings.  Some of the employees had
 been subjected to erroneous withholding because they never had been in
 the bargaining unit while others had been promoted out of the unit
 before dues were withheld.  The Judge also found in Case No. 1-CA-559
 that the Respondent's withholding of dues was contrary to a portion of
 the parties' collective bargaining agreement which is a restatement of
 section 7115(a) of the Statute, /4/ and therefore violated section
 7116(a)(8) of the Statute.  The Authority does not agree.
 
    In Department of the Air Force, 3480th Air Base Group, Goodfellow Air
 Force Base, Texas, 9 FLRA No. 48 (1982), appeal docketed, No. 82-4334
 (5th Cir. Sept. 8, 1982), the Authority held that "section 7116(b)
 requires dues withholding authorizations to terminate when an employee
 has been promoted to a supervisory position outside the bargaining unit,
 and therefore management does not violate section 7116(a)(1) and (8) by
 terminating such allotments." It was further determined that "correction
 of an administrative error in order to comply with a statutory mandate .
 . . cannot itself constitute a violation of the Statute," and that
 "where management's compliance with the requirements of section 7115 of
 the Statute conflicts with the provisions of a preexisting dues
 withholding agreement, no violation of section 7116(a)(5) is
 established." Thus, based on the reasoning set forth in Goodfellow, the
 Authority finds, contrary to the Judge, that the Respondent's actions
 did not constitute violations of the Statute as alleged in Case No.
 1-CA-559.  In so concluding, the Authority further notes that section
 7115(a) of the Statute specifically applies to dues withholding
 authorization of "employee(s) in an appropriate unit" rather than to
 employees generally.  /5/
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the consolidated complaint in Case Nos.
 1-CA-384, 1-CA-559 and 1-CA-588 be, and it hereby is, dismissed.
 
 Issued, Washington, D.C., June 13, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                                       Case No.: 1-CA-384, 1-CA-559,
                                       1-CA-588
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Lt. Col. Nicholas J. Angelides
          For the Respondent
 
    James R. Collins, Esquire
          For the General Counsel
 
    Mr. Keith Livermore
          For the Charging Party
 
    Before:  BURTON S. STERNBURG
 
                         Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, Section 7101,
 et seq., and the Rules and Regulations issued thereunder, Fed. Reg. Vol.
 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411, et seq.
 
    Pursuant to charges filed on May 22, 1980, in Case No. 1-CA-384,
 November 21, 1980, in Case No. 559 and December 11, 1980, in Case No.
 1-CA-588, by Local 2612, American Federation of Government Employees,
 AFL-CIO, (hereinafter called the Union or AFGE), a Consolidated
 Complaint and Notice of Hearing was issued on February 21, 1981, by the
 Regional Director for Region I, Federal Labor Relations Authority,
 Boston, Massachusetts.  The Consolidated Complaint alleges, in
 substance, that the Department of the Air Force, Griffiss Air Force
 Base, Rome, New York, (hereinafter called the Air Force or Respondent),
 violated Sections 7116(a)(1), (5) and (8) of the Federal Service
 Labor-Management Relations Statute, (hereinafter called the Statute), by
 virtue of its actions in failing to remit to the Union on three
 occasions the entire amount of money withheld from employees' paychecks
 pursuant to dues allotments executed in accordance with Section 7115 of
 the Statute and disbursing instead such withheld monies to non-unit
 employees who in the past had had union dues improperly or erroneously
 deducted from their respective bi-weekly pay checks.
 
    A hearing was held in the captioned matter on July 28, 1981, in Rome,
 New York.  All parties were afforded full opportunity to be heard, to
 examine and cross-examine witnesses, and to introduce evidence bearing
 on the issues involved herein.  The General Counsel and the Respondent
 submitted post-hearing briefs on September 28, 1981, which have been
 duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union has been the exclusive bargaining representative of
 Respondent's employees serviced by the Griffiss AFB Central Civilian
 Personnel Office since December 4, 1967.  Excluded from the bargaining
 unit are, among others, firefighters, professional employees,
 supervisors and managerial employees.
 
    The Union and the Respondent were parties to a collective bargaining
 agreement which commenced on August 20, 1976, and expired on May 20,
 1979.  Despite the expiration of the collective bargaining agreement the
 parties have continued to apply its terms to their day to day labor
 relations' activities.
 
    Article 35 of the collective bargaining agreement entitled "Dues
 Withholding" provides for dues withholding from unit employees who have
 executed a Standard Form 1187, the government form used by employees to
 request and authorize bi-weekly dues deductions from their respective
 bi-weekly wages.  Standard Form 1187 is distributed by the Union to the
 unit employees and returned by the Union to the Respondent after
 execution by the affected employee.  Article 35, particularly, Sections
 2 and 4, makes it clear that only unit personnel are eligible for dues
 withholding and that such dues withholding shall cease when the affected
 employee leaves the unit by transfer or promotion to a supervisory or
 managerial position.  Section 4(j) imposes upon the Union the
 responsibility for "informing and educating its members concerning the
 voluntary program for the allotment of dues and availability of SF-1187
 and the conditions for revocation of allotments".
 
    On July 5, 1978, Respondent received a memorandum from Headquarters
 Strategic Air Command wherein the Respondent was advised of the Federal
 Labor Relations Council's decision in Headquarters, XVIII Airborne Corps
 and Fort Bragg and AFGE, Local 1770, AFL-CIO, FLRC No. 76A-145, 1/12/78,
 concerning the recoupment of union dues which had erroneously been
 deducted from the wages of an employee who had been promoted out of the
 bargaining unit.  /6/ Predicated upon such decision, Respondent was
 instructed to screen its dues withholding lists for purposes of
 determining whether there were any non-unit employees having dues
 deducted from their bi-weekly wages.  If so, the non-unit employee or
 employees were to have their respective allotments discontinued and
 appropriate action was to be taken to rectify the erroneously withheld
 dues deductions which had in the past been routinely remitted to the
 Union.
 
    Pursuant to the aforementioned memorandum from Hdq. Strategic Air
 Command, Mr. William DeSantis, a Labor Relations Specialist at Griffiss
 AFB, checked the dues withholding lists and determined that during the
 past six years there were some 65 employees on the Union's dues
 withholding lists who had either never held a unit position or had been
 out of the unit for some time.  A list of the 65 employees together with
 the dates they had not occupied unit positions was sent in August of
 1978 to the base accounting office for calculation of the amount of dues
 deductions which had to be recouped.  A copy of the list was also sent
 to the Union.  Due to the fact that many of the employees' files had to
 be retrieved from the national record depository, the calculations
 concerning the amount of money to be recouped were not completed until
 June of 1979.
 
    On July 27, 1979, Respondent informed the Union by letter of the
 results of its audit.  The audit revealed that some 64 employees, during
 the past six years, had been subjected for varying periods of time to
 erroneous dues deductions from their respective bi-weekly wage checks.
 The Union was further informed that absent a waiver from the involved
 employees named on an attached list, and Respondent intended to recoup
 from the Union the erroneous dues deductions and then reimburse the
 affected employees.
 
    During September of 1979, Respondent sent a letter to each of the 64
 employees appearing on the list, told them of the erroneous dues
 deductions and asked them whether they wanted to waive or claim the
 amounts of money involved.  Forms for waiving or claiming the erroneous
 dues deductions were submitted to the employees along with a letter
 explaining their rights.  According to Mr. DeSantis, the letters
 prompted calls from other employees who claimed that they also had dues
 improperly deducted from their pay.  The names of such employees were
 referred to the accounting office for investigation.
 
    On November 2, 1979, Respondent sent a letter to the Union wherein it
 informed the Union that 37 employees had opted to pursue claims for
 erroneous dues withholding in the total amount of $2,884 and that 20
 employees had opted to waive their erroneous dues withholding in the
 amount of $1,253.90.  The Union was further informed that replies had
 not been received as yet from five named employees and that two other
 employees had not been contacted.  The letter ended with a demand that
 the Union remit the sum of $2,884 within ten days from the date of the
 letter.
 
    Subsequently, after exchanging letters concerning the claim for
 remittance of the erroneously withheld dues, Respondent on November 30,
 1979, wrote the Union that if the Union did not remit the sum of $2,884
 by December 14, 1979, it would "start action to set off the $2,884
 against your (the Union's) current labor union dues withholding
 amounts".  Shortly thereafter the Institute instituted an action in the
 U.S. District Court, Northern District of New York, seeing to restrain
 the Respondent from effecting the setoff from current union dues.  In
 view of the pending law suit, Respondent held up further proceedings
 with respect to the setoff action.
 
    On September 12, 1980, several weeks after the District Court on
 August 27, 1980, dismissed the Union's law suit for lack of
 jurisdiction, Respondent, without any further notice to the Union,
 setoff $2,076 from dues within its possession which had been deducted
 from current members of the Union.  On September 26, 1980, the
 Respondent withheld an additional $829.95 from current dues to which the
 Union was entitled.  It appears that the setoff was done on two separate
 dates because the dues to which the Union were entitled did not at any
 one time amount to the $2,884 which the Respondent was seeking to
 recoup.  The $2,905.95 withheld was disbursed to the employees who were
 the victims of the erroneous dues deductions on October 29, 1980.
 
    On December 5, 1980, Respondent withheld an additional $522.05 from
 the current dues held for the Union and subsequently disbursed such
 amount to six other employees on December 10, 1980.
 
    With regard to the December 5, 1980, withholding, the record
 indicates that the Union was informed by the Respondent of its
 contemplated action on November 26th and that the Union president
 requested to negotiate the matter and, in fact, submitted a proposal on
 December 1, 1980.  /7/ No bargaining, however, was held.
 
    The record reveals that the Respondent was aware, at least as early
 September 29, 1980, of the September 8, 1980, decision of the
 Comptroller General in Fort Stewart/Hunter Army Airfield, supra, which
 reversed the Comptroller's earlier position and held that, in the
 absence of a request from an affected employee to cease withholding
 dues, an agency was under no obligation to subsequently take action to
 recoup the erroneously withheld union dues of the employee who had, for
 one reason or another, left the certified unit.  However, Respondent
 opted to proceed with the recoupment which is the subject of the instant
 complaint on the ground that it believed that the Union had knowingly
 taken advantage of Respondent by submitting signed Standard Forms 1187
 for employees who were not in the unit and who were not eligible to be
 in the unit.
 
    The record also reveals that on December 8, 1980, three days prior to
 December 11, 1980, the date when the charge in Case No. 1-CA-588
 involving the December 5, 1980, recoupment action by the Respondent was
 filed with the Regional Office of the Authority, the Union filed a
 grievance alleging that Respondent had violated Article 35 of the
 contract which requires the Respondent to remit the bi-weekly dues
 deductions from its employees to the Union.  The charge, alleges, in
 substance, that the unilateral change in a condition of employment, i.e.
 failure to remit total amount of withheld dues money without allowing
 impact and implementation bargaining, was violative of Sections
 7116(a)(1), (5) and (8) of the Statute.
 
    Subsequently, the Respondent and the Union exchanged a number of
 letters concerning the grievance.  Respondent took the position that the
 grievance was identical to the ULP charge and that the Statute
 prohibited the same issue from being raised in two forums.  The
 Respondent made it clear that it would only process the grievance if the
 ULP was withdrawn.  The Union, which of course differed with the
 Respondent's position, at a later date, for reasons not set forth in the
 record, withdrew the pending grievance.
 
                        Discussion and Conclusions
 
    The General Counsel contends in his post-hearing brief that the three
 acts of recoupment by the Respondent violated Sections 7116(a)(5) and
 (1) of the Statute in that such actions amounted to both a repudiation
 and a patent breach of Article 35 (dues withholding) of the collective
 bargaining agreement.  The General Counsel further contends that the
 three acts of recoupment constitute non-compliance with Section 7115(a)
 of the Statute which deals with dues withholding and as such also
 constitutes violations of Section 7116(a)(1) and (8).  Finally, the
 General Counsel contends that Respondent's threat to effectuate the
 set-off, standing alone, is violative of Section 7116(a)(1).
 
    Respondent takes the position that the aforementioned contentions of
 the General Counsel are without merit and argues that it is under an
 obligation to recover the funds erroneously deducted from non-unit
 employees' wages and forwarded to the Union.  Respondent further argues
 that further proceedings with respect to that portion of the complaint
 predicated upon the charge in Case No. 1-CA-588 are precluded by Section
 7116(d) of the Statute.
 
    Taking the parties contentions and defenses in inverse order, I can
 not find, as urged by the General Counsel, that the mere notice of
 intention to recoup erroneously withheld union dues through the legal
 procedure of "set-off", standing alone, interferes with, restrains or
 coerces employees in the exercise of their rights accorded by the
 Statute to have their respective union dues withheld and forwarded to
 the Union.  /8/ Once dues have been withheld pursuant to an appropriate
 dues withholding authorization, such dues belong to, and are a
 receivable of, the Union and like any other union asset, become subject
 to appropriate legal procedures, including set-off.  /9/ In this latter
 context it is noted that in the absence of any evidence that the filing
 of a law suit or the institution of other legal proceedings were
 designed to either curtail, interfere with, or restrain legitimate union
 activity, the mere filing of a law suit, standing alone, is an
 insufficient basis for a 7116(a)(1) finding.  /10/ Accordingly, in as
 much as the institution of a set-off appears to be tantamount to the
 filing of a law suit, I can not find, as urged by the General Counsel,
 that the giving of advanced notice of intention to take legal action,
 such as a set-off, amounts to coercion, restraint or interference within
 the meaning of Section 7116(a)(1) of the Statute and will therefore
 recommend that such allegation of the instant complaint be dismissed.
 
    With regard to that portion of the consolidated complaint predicated
 upon the charges in Case No. 1-CA-588, I find in agreement with the
 Respondent, that further proceedings thereon are barred by Section
 7116(d) of the Statute which precludes the simultaneous processing of
 the same issue as a grievance and an unfair labor practice.  Thus, it is
 noted that both the grievance which was filed on December 8, 1980, and
 those portions of the unfair labor practice complaint based on charges
 filed on December 11, 1980, rely upon the Respondent's action on or
 about December 5, 1980, in recouping $554.85 from the current amount of
 withheld union dues in Respondent's possession.  Both the grievance and
 the unfair labor practice complaint, particularly paragraph 14(d),
 allege a violation of Article 35 of the collective bargaining agreement
 as the basis of the respective actions.  /11/ Accordingly, since the
 gravamen of the complaint and the grievance appears to be the same, I
 find that the Charging Party's action in filing the grievance some three
 days prior to the charges (1-CA-588) underlying the unfair labor
 practice complaint, precludes further processing of that portion of the
 consolidated complaint based upon the charges in Case No. 1-CA-588, and
 shall therefore recommend dismissal of this aspect of the consolidated
 complaint.
 
    Turning now to the remainder of the consolidated complaint which is
 predicated upon Respondent's actions on September 12, 1980, and
 September 29, 1980, in withholding $2,076 and $829.95, respectively,
 from current union dues allotments within its possession and
 subsequently disbursing such monies to various employees who had in the
 past been subjected to erroneous dues withholding, I find that such
 actions by the Respondent were violative of Sections 7116(a)(1), (5) and
 (8) of the Statute.
 
    All parties agree that, as a general rule, Section 7115(a) of the
 Statute requires that upon receipt of an appropriate written
 authorization from a unit employee an agency must deduct the regular and
 periodic union dues of the employee from his bi-weekly wages and in due
 course remit such dues to the union.  It is equally clear and I find no
 contention to the contrary, that the dues withholding obligation imposed
 upon an agency ceases to be effective when the affected employee, for
 one reason or another, leaves the certified unit.  Both the above
 general rules with respect to the withholding of periodic union dues
 from unit employees are part and parcel of Article 35 of the current
 collective bargaining agreement being recognized by the parties.
 Article 35, in addition to setting forth the obligations imposed by
 Section 7115(a) of the Statute, imposes upon the Union the obligation of
 educating the unit employees with respect to their right to execute
 and/or revoke dues withholding authorizations.
 
    Although acknowledging the above obligations imposed by both the
 Statute and the collective bargaining agreement currently in effect, the
 Respondent, relying primarily upon the Federal Labor Relations Council's
 decision in Headquarters, XVIII Airborne Corps and Fort Bragg and AFGE,
 Local 1770, AFL-CIO, supra, and the Comptroller General's Decisions
 cited therein, takes the position that its action in recouping
 erroneously withheld union dues and subsequently disbursing same was not
 violative of Sections 7116(a)(1), (5) and (8) of the Statute.  The
 Respondent further argues that even though there has been a change in
 the Comptroller General's position which was the underlying basis for
 the Council's decision in Fort Bragg, supra, Respondent's recoupment and
 disbursement activities were protected since the Union had knowingly
 submitted withholding authorizations from employees outside the
 certified unit and had failed to fulfill its obligations imposed by the
 collective bargaining agreement with respect to educating the employees
 concerning their respective rights to execute or revoke dues withholding
 authorizations.
 
    In the Fort Bragg case, supra, an arbitrator determined that an
 agency violated the collective bargaining agreement in effect when it
 unilaterally deducted from bi-weekly dues withholding the sum of $170.15
 and subsequently disbursed such sum to an employee who had had such
 monies erroneously deducted in the past from his bi-weekly pay checks
 after he had been promoted out of the unit.  The arbitrator ordered the
 agency to reimburse the union for the monies withheld from the current
 bi-weekly dues deductions within Respondent's possession.
 
    During the period that the affected employee was subjected to the
 erroneous dues deductions, he received Statements of Earnings and Leave
 indicating that his checkoff was still in effect.  The employee,
 however, made no effort to revoke his checkoff or resign from the union
 and continued to enjoy a number of benefits conferred upon rank and file
 union members in good standing.  After being informed of the error, the
 employee did not request a refund of the dues, either from the agency or
 from the union.
 
    Upon receiving a petition for review of the arbitrator's award in
 Fort Bragg, the Federal Labor Relations Council submitted the matter to
 the Comptroller General's Office and requested a decision as to whether
 the arbitrator's award violated applicable law.  On December 8, 1977, in
 Case No. B-180095 the Comptroller issued its decision wherein it
 concluded that its earlier decision in Aberdeen Proving Ground (APG),
 B-180095, October 1, 1974, and Reconsideration of APG, 54 Comp.Gen. 921,
 (1975) was controlling and, accordingly, found that the Agency was under
 an obligation to recoup erroneously withheld union dues and disburse
 same to the affected employee.  In line with such conclusion, the
 Comptroller found the arbitrator's award to be violative of applicable
 law and regulation.  The Council, after quoting the Comptroller
 General's opinion, in its entirety, in a two line conclusion set aside
 the arbitrator's award as being contrary to law and regulation.  /12/ A
 reading of the Council's decision, indicates without a doubt, that the
 sole basis for the Council's decision was the requested opinion from the
 Comptroller General.
 
    On September 8, 1980, the Comptroller General in Fort Stewart/Hunter
 Army Airfield, File B-180095, September 8, 1980, (appearing in the
 instant record as GC-Exhibit No. 9), reconsidered the matter of
 recoupment by an agency of erroneously withheld union dues allotments
 and concluded that an agency was under no obligation to reimburse
 affected employees for such erroneous union dues allotments in the
 absence of a showing that the employee or employees involved had either
 notified the agency that they were no longer in the certified unit or
 requested that their respective dues allotments be discontinued.  The
 Comptroller's decision is rationalized in pertinent part as follows:
 
          Although we must agree that allotments were erroneously
       withheld in these circumstances, we do not believe that the
       Government is required to pay over the erroneously withheld
       allotments to the employees.  It is the primary responsibility of
       an agency to cancel allotments of union dues when an employee is
       no longer in the bargaining unit, but the employee should not be
       relieved of the duty to advise the agency promptly if allotments
       are being improperly withheld.
 
          We are particularly constrained to that view because employees
       may be members of a labor organization whether or not they are
       members of a bargaining unit covered by a written ;  agreement.
       Therefore, when an employee leaves a unit covered by a bargaining
       agreement, only the right to have his union dues paid by voluntary
       allotment ends.  His union membership continues until he takes
       some action to terminate it.  If through administrative error the
       allotment continues to be paid to the union, the employee is
       presumed to have knowledge of the fact his allotment has continued
       since in most cases the allotment is shown on Leave and Earnings
       Statements each pay period.  Thus, the employee is or should be
       aware that his union dues are being paid by allotment, and he is
       in a position to know that such deductions are improper.  In any
       case the employee does not lose the money in question since it is
       owed to the union.  Further, the union is not being unjustly
       enriched, since it is entitled to dues from its members.  See
       Matter of Sergeant Richard C. Rushing, USA, B-194692, July 24,
       1979, in which it was held that the individual "would not be
       entitled to a refund (of an allotment) if he had an interest in,
       or the proceeds from the allotment inured to his benefit."
 
          It is our position that, to the extent that the proceeds of the
       allotments inured to the benefit of the employees in this case in
       that their union dues were paid, there is no requirement to
       reimburse the employees.  Further, in view of the difficulties
       which such reimbursements cause, they should not be made unless an
       individual case presents facts which would justify such action.
 
          Since we have determined that the Government is not required to
       reimburse the employees, there is no need to recoup the money from
       the union.
 
    A similar conclusion, based upon identical considerations, was
 reached by the U.S. District Court, Northern District of Alabama,
 Northeastern Division, in AFGE, Local 1858 (AFL-CIO) v. Clifford
 Alexander, Secretary of the Army, Civil Action No. 78-W-5023-NE,
 4/10/78.  The District Court enjoined the Army from recouping
 erroneously withheld union dues and disbursing the recouped monies to
 two employees who had been promoted out of the certified unit.
 
    On the basis of the above conclusions, decisions of the Court and
 Comptroller General, and the absence of any probative evidence
 indicating that the erroneously withheld union dues allotments were
 effected after the non-unit employees involved had requested
 discontinuance of same, I find that the Respondent violated Sections
 7116(a)(1), (5) and (8) of the Statute when, on its own motion, it
 unilaterally decided to breach Article 35 of the collective bargaining
 agreement and withhold from current monies due the Union erroneously
 withheld union dues allotments and subsequently disburse such monies to
 a number of employees who had either never been in the unit or had
 subsequently been promoted out of the unit.  /13/
 
    In reaching the above finding, I am not unmindful that there
 currently exists a contrary decision of the Federal Labor Relations
 Council, the predecessor to the Federal Labor Relations Authority.
 However, inasmuch as the Council's decision was based solely on a
 requested opinion from the Comptroller General, who in his wisdom has
 seen fit to alter his position, it is anticipated that the Comptroller's
 current position would again be followed.
 
    The fact that the Union might have intentionally submitted dues
 withholding authorizations from employees outside the certified unit
 does not excuse the Respondent's actions, here found to be violative of
 the Statute.  The Respondent's sole recourse to such alleged action by
 the Union is the cancellation of such dues withholding.  Having
 authorized the withholding, the employee or employees involved,
 certainly have no legitimate claim against Respondent for its erroneous
 action in withholding their respective dues at a time when they were not
 a member of the certified unit.  Similarly, the fact that the Union
 might not have complied with the educational requirements imposed upon
 it by the collective bargaining contract is an insufficient basis to
 condone Respondent's recoupment actions which fly directly in the face
 of the obligations imposed by both the Statute and the collective
 bargaining agreement.
 
    Having found and concluded that the Respondent violated Sections
 7116(a)(1), (5) and (8) of the Statute by virtue of its actions on
 September 12, 1980 and September 29, 1980, in unilaterally breaching the
 obligations imposed by both the collective bargaining agreement and the
 Statute and withholding $2,076 and $829.95, respectively, from current
 union dues withholding allotments of current unit employees within its
 possessions and subsequently disbursing such monies to various employees
 who had in the past been subjected to erroneous union dues withholding,
 I recommend that the Authority issue the following order designed to
 effectuate the purposes of the Statute.
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that the Department of the
 Air Force, Griffiss Air Force Base, Rome, New York, shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally breaching its contractual and Statutory
       obligations by withholding monies from current union dues
       withholding allotments in its possession and disbursing such
       monies to employees who had in the past been subjected to
       erroneous union dues withholding deductions from their respective
       bi-weekly pay checks.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Labor-Management Relations Statute:
 
          (a) Pay to Local 2612, American Federation of Government
       Employees, AFL-CIO, the sum of $2,905.95, which represents the
       total amount of money illegally withheld from current union dues
       withholding allotments of unit employees on September 12 and 29,
       1980.
 
          (b) Post at Griffiss Air Force Base, Rome, New York, copies of
       the attached notice marked "Appendix", on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such forms
       they shall be signed by the Base Commander and they shall be
       posted for 60 consecutive days thereafter in conspicuous places,
       including all places where notices to employees are customarily
       posted.  The Base Commander shall take reasonable steps to insure
       that such notices are not altered, defaced or covered by any other
       material.
 
          (c) Notify the Federal Labor Relations Authority in writing
       within 30 days from the date of this Order as to what steps have
       been taken to comply herewith.
 
    IT IS HEREBY FURTHER ORDERED that the remaining allegations of the
 complaint, which have been found supra not to be violative of the
 Statute, be, and hereby are dismissed.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Dated:  December 9, 1981
          Washington, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT unilaterally breach our statutory and contractual bargaining
 obligations by withholding monies from current union dues to withholding
 allotments in our possession and disbursing such monies to employees who
 in the past have been subjected to erroneous union dues withholding
 deductions from their bi-weekly pay checks.  WE WILL NOT in any like or
 related manner, interfere with, restrain, or coerce our employees in the
 exercise of their rights assured by the Statute.  WE WILL pay to Local
 2612, American Federation of Government Employees, AFL-CIO, the sum of
 $2,905.95, which represents the total amount of money illegally withheld
 from current union dues withholding allotments of unit employees on
 September 12 and 29, 1980.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting and must not be altered,
 defaced or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director for
 the Federal Labor Relations Authority, Region 1, whose address is:  441
 Stuart Street, Boston, MA 02116, and whose telephone number is:  (617)
 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel filed a request to withdraw the complaint on
 the sole ground that Department of the Air Force, 3480th Air Base Group,
 Goodfellow Air Force Base, Texas, 9 FLRA No. 48 (1982), appeal docketed,
 No. 82-4334 (5th Cir. Sept. 8, 1982), decided subsequent to issuance of
 the complaint, is dispositive of this case.  The Charging Party filed an
 opposition.  The Authority concludes that, at this stage of the
 proceeding, the purposes and policies of the Statute would be best
 effectuated by issuing a decision herein.  Accordingly, the General
 Counsel's request to withdraw the complaint is denied.
 
 
    /2/ In the absence of exceptions, the Authority adopts the Judge's
 conclusion in Case No. 1-CA-384 that the Respondent did not interfere
 with, restrain or coerce unit employees in violation of section
 7116(a)(1) of the Statute by providing the Union with advance notice of
 its intention to recoup improperly withheld dues authorizations.
 
 
    /3/ Section 7116(a)(1), (5) and (8) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /4/ Section 7115(a) provides:
 
          Sec. 7115.  Allotments to representatives
 
          (a) If an agency has received from an employee in an
       appropriate unit a written assignment which authorizes the agency
       to deduct from the pay of the employee amounts for the payment of
       regular and periodic dues of the exclusive representative of the
       unit, the agency shall honor the assignment and make an
       appropriate allotment pursuant to the assignment.  Any such
       allotment shall be made at no cost to the exclusive representative
       or the employee.  Except as provided under subsection (b) of this
       section, any such assignment may not be revoked for a period of 1
       year.
 
 
    /5/ In Case No. 1-CA-588, the Judge did not pass upon the section
 7116(a)(1), (5) and (8) allegations, which were based on a similar
 incident of alleged wrongful withholding of dues allotments from the
 Union in order to reimburse employees whose pay had been improperly
 subjected to dues withholding.  Rather, he determined that unfair labor
 practice proceedings were barred by section 7116(d) of the Statute which
 provides, in pertinent part, that "issues which can be raised under a
 grievance procedure may, in the discretion of the aggrieved party, be
 raised under the grievance procedure or as an unfair labor practice . .
 . but not under both procedures."
 
 
    /6/ In the Fort Bragg case, supra, the affected employee, who was
 subsequently reimbursed by the agency, was aware of the fact that the
 dues deductions were being erroneously made but made no effort to
 correct the matter or resign from the union there involved.  While the
 dues deductions were being made the affected employee enjoyed a number
 of benefits flowing from his membership in the union.
 
    Relying solely on an opinion from the Comptroller General, which in
 turn relied on an earlier decision of the Comptroller General in
 Aberdeen Proving Ground, B-180095, October 1, 1974, and Reconsideration
 of APG, 54 Comp.Gen. 921 (1975), the Federal Labor Relations Council
 concluded that an arbitrator was wrong in awarding the union the amount
 of money recouped by the agency from the current bi-weekly dues
 deductions to be forwarded to the union, and therefore set aside the
 arbitrators award which had ordered that the recouped funds be returned
 to the union.
 
 
    /7/ The Union's bargaining proposal read as follows:  Consistent with
 the Comptroller General Decision B-180095 dated September 8, 1980, in
 the Matter of Recoupment of Union Dues-Fort Stewart/Hunter Army Air
 Field, the employer will discontinue its practice of recouping union
 dues allotments and using said collection of funds to reimburse
 employees for union dues allotments, which were continued after
 employees were no longer part of the bargaining unit.
 
 
    /8/ Cf. Defense Logistics Agency, 5 FLRA No. 21, wherein the
 Authority concluded that dues withholding is an integral part of an
 employee's right to join, form and assist a union.
 
 
    /9/ Cf. United States v. Munsey Trust Company of Washington, D.C.,
 332 U.S. 234 wherein the Supreme Court upheld the right of the
 government to effect a set-off which was challengeable in the Court of
 Claims.
 
 
    /10/ Cf. Consumer Products Safety Commission and AFGE, Local 3705,
 AFL-CIO, 4 FLRA No. 105.
 
 
    /11/ Section 14(d) of the Complaint alle